Royal McBee Corp.

National Labor Relations Board - Board Decisions

Oct 26, 1961

133 N.L.R.B. 1450 (N.L.R.B. 1961)

1450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that either the Local or the International has ever disavowed or repudiated the
described conduct . As noted above, the picketing itself was a joint venture of both
Respondents.
In summary , then , it is concluded and found that the Respondents , and each of
them , restrained and coerced employees in the exercise of rights guaranteed employees
by the Act, by: ( 1) the blocking of vehicles at the plant entrance ; (2) the threatening
by Adams of a neutral truckdriver ; ( 3) the threatening with bodily harm of Walters
by Thomas; (4) the shooting at the two cars containing nonstrikers on May 25; and
( 5) the recording and publishing of license plate numbers of nonstrikers.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth above, occurring in connection with
the operations of the employer as described in section I above, have a close, inti-
mate, and substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the Respondents have engaged in unfair labor practices, the
Trial Examiner will recommend that they cease and desist therefrom and take certain
affirmative action to effectuate the policies of the Act.
Upon the foregoing findings of fact, and upon the entire record, the Trial Examiner
makes the following:
CONCLUSIONS OF LAW
1. National Gypsum Company, St. Louis, Missouri, is engaged in commerce
within the meaning of the Act.
2. Local 316, United Cement, Lime and Gypsum Workers International Union,
AFL-CIO, and United Cement, Lime and Gypsum Workers International Union,
AFL-CIO, are labor organizations within the meaning of Section 2(5) of the Act.
3. By restraining and coercing employees in the exercise of rights guaranteed in
Section 7 of the Act, the Respondents have engaged in and are engaging in unfair
labor practices within the meaning of Section 8(b)(1)(A) of the Act.
4. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Royal McBee Corporation and Local Union No. 453, International
Brotherhood of Electrical Workers, AFL-CIO. Case No. 17-
CA-1671. October 26, 1961
DECISION AND ORDER
On May 22, 1961, Trial Examiner Morton D. Friedman issued his
Intermediate Reportherein, finding that the Respondent had engaged
in and was engaging in unfair labor practices in violation of Section
8(a) (5) and (1) of the Act and recommending that it cease and desist
therefrom and take affirmative action, as set forth in the Intermediate
Report attached hereto. Thereafter, the Respondent filed exceptions
to the Intermediate Report and a supporting brief.'
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Members Leedom, Fanning, and Brown].
I The Respondent's request for oral argument is hereby denied as the record, exceptions,
and brief adequately present the issues and positions of the parties
133 NLRB No. 149.
ROYAL McBEE CORPORATION 1451
The Board has reviewed the Trial Examiner's rulings and finds no
prejudicial error. The rulings are affirmed 2 The Board has con-
sidered the Intermediate Report, the exceptions and brief, and the
entire record in this case, and adopts the findings, conclusions, and
recommendations of the Trial Examiner.
ORDER
The Board adopts the recommendations of the Trial Examiner with
the modification that provision 2(c) read : "Notify the Regional Di-
rector for the Seventeenth Region, in writing, within 10 days from the
the date of this Order, what steps the Respondent has taken to comply
herewith." 3
2 For reasons hereinafter set forth , we find without merit the Respondent 's claim that
the rejection of its offer of proof and testimony relating to the unit issue constituted a
denial of due process
The Trial Examiner excluded the evidence in question on grounds that the rejected
matters were essentially the same as those which Respondent had previously presented to
the Board in the course of the representation proceeding "except for the amount of detail
and definiteness " The record supports this conclusion This being so, we do not regard
as erroneous the Trial Examiner ' s refusal thus to permit the Respondent to relitigate in
this proceeding , unit issues previously presented to the Board in the representation pro-
ceeding In any event , we are satisfied from our examination of the Respondent's offer
of proof , that the evidence the Respondent would now adduce would not have affected the
validity of the Board 's unit determination as made The Board 's findings in the repre-
sentation case show that the Board ' s unit determination was predicated on evidence that
the maintenance electricians here involved comprise an identifiable group of craftsmen
who both possess and exercise the skills of their craft . A comparison of the job de-
scription originally placed in evidence in the representation proceedings with reference
to the electricians and that attached to the offer of proof shows no material and substan-
tial changes in the duties of the electricians comprising the unit We note, further, that
Respondent admits in its offer of proof that it has had "no interchange of electricians
and production people to date " In these circumstances , the Trial Examiner 's ruling
rejecting the evidence in question , even if assumed to be erroneous , was not prejudicial
Worcester Woolen Mills Corporation , 74 NLRB 1071 , 1072, enfd . 170 F. 2d 13, 16 (C.A. 1),
cert denied 336 U.S. 903 , cf. Moss Amber Mfg. Co ., 119 NLRB 732 , 733, footnote 1.
3In the notice attached to the Intermediate Report as the Appendix , the words "Deci-
sion and Order" are hereby substituted for the words "The Recommendations of a Trial
Examiner " In the event that this Order is enforced by a decree of a United States Court
of Appeals , there shall be substituted for the words "Pursuant to a Decision and Order"
the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an
Order."
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding , brought under Section 10 (b) of the National Labor Relations
Act, as amended ( 61 Stat . 136), was heard in Kansas City , Missouri , on January 24,
1961 , before the duly designated Trial Examiner . The complaint alleges that Royal
McBee Corporation , herein called the Company or the Respondent , since on or about
June 29, 1960, has refused to bargain collectively with Local Union No . 453, Inter-
national Brotherhood of Electrical Workers , AFL-CIO, herein called the Union, as
the exclusive bargaining representative of the Company 's employees in an appropriate
unit and thereby has interfered with, restrained , and coerced its employees in the
exercise of rights guaranteed them by Section 7 of the Act. In substance , the Com-
pany admits the allegations of the complaint pertaining to the refusal to bargain but
denies that the refusal was or is unlawful.
At the hearing all parties were represented and participated . The parties waived
oral argument but, as hereinafter set forth, the Company submitted a written offer of
proof at the end of the hearing . All parties have filed briefs.
Upon the entire record in this case , and from my observation of the witnesses, I
make the following:
1452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The Company, a New York corporation engaged in the manufacture of type-
writers, maintains a plant at Springfield, Missouri, the subject of this proceeding.
During the year immediately preceding the complaint herein, the Company shipped
from the said plant directly to points outside the State of Missouri goods valued in
excess of $50,000. During the same period, the said plant purchased materials valued
in excess of $50,000 originating outside the State of Missouri.
I find upon the foregoing that the Company is engaged in commerce within the
meaning of the Act, and that it will effectuate the policies of the Act to assert juris-
diction in this proceeding.
II. THE LABOR ORGANIZATION INVOLVED
The Union admits to membership employees of the Company and members of the
Union were employed by the Company at all times material herein. It is the func-
tion of the Union to bargain with the Company and other employers with regard to
wages, hours, and working conditions of employees.' On the basis of the foregoing,
and on the Board's findings in Case No. 17-RC-3145,2 I find that the Union is a
labor organization within the meaning of the Act and admits to membership employ-
ees of the Company.
III. THE UNFAIR LABOR PRACTICES
A. Background, case history, and facts
On May 2, 1960, after a hearing upon a representation petition filed under Section
9(c) of the Act, the Board issued its Decision and Direction of Election 3 in which
it ordered, among other things, an election by secret ballot in a unit of the Com-
pany's maintenance electricians , which the Board found to be an appropriate unit, to
determine whether the said employees desired to be represented for collective-
bargaining purposes by the Union. At the election held on June 9, 1960, in which
approximately three employees were eligible, two votes were cast for the Union and
none against. Therefore, on June 17, 1960, the Regional Director for the Seventeenth
Region, on behalf of the Board, certified the Union as the bargaining representative of
the Company's maintenance electricians.
On June 29, 1960, the Union, in writing, requested the Company to bargain and by
letter dated July 13, 1960 , the Company acknowledged the Union's request but
refused to bargain stating:
We must respectfully decline your request . We sincerely believe that the unit
you claim to represent is inappropriate and has been improperly and unlawfully
certified by the National Labor Relations Board.
Our position now is the same as we stated orally before the Board at the hear-
ing in January and as stated in our brief. We then urged the Board to consider a
plantwide unit, stating our reasons (1) we felt the "carve out" of a so-called
craft unit was not only inappropriate, but unlawful; (2) the bargaining history of
our Hartford plant has been on a plantwide basis for over 13 years; (3) the in-
tegrated nature of our manufacturing operation make a craft unit inappropriate;
and (4) the case of NLRB v. Pittsburgh Plate Glass Company, recently decided
by the 4th Circuit Court of Appeals, is squarely in point with our case. That
case holds that the American Potash Doctrine adopted by the Board as a policy
for craft unit determinations, is contrary to the National Labor Relations Act.
On August 29, 1960, the Union filed its charge alleging the Company's refusal to
bargain as unlawful and thereafter on September 22, 1960, the Regional Director for
the Seventeenth Region issued the complaint herein.
On September 30, 1960, the Company made and served a petition to (1) set aside
the election and certification, (2) reopen the record for the taking of additional testi-
mony because of newly discovered evidence and changed circumstances relevant to
unit determination, and (3) reconsider the Board's maintenance electrician unit de-
termination. On October 18, 1960, an amended petition was served and filed setting
forth in great detail the Company' s arguments in support of the petition. In sum,
this supporting material shows at length the installation of additional machinery and
' From the credited testimony of Jack Moore, the Union's business agent. The Company
refused to stipulate that the Union is a labor organization.
2 Royal McBee Corporation, 127 NLRB 896.
3 Royal McBee Corporation, supra.
ROYAL McBEE CORPORATION 1453
equipment and alleges more complete integration of the operation of the Springfield
plant than existed or was contemplated at the time of the hearing which led to the
Board's unit determination. The petition contends further that this matter constitutes
newly discovered evidence and that had the Board had this evidence before it at the
representation hearing, the latter's decision, under the law, would have had to be
different and a separate unit of maintenance electricians would not have been found
to be appropriate.
On December 14, 1960, the Board issued an order denying the petition for re-
consideration on the ground that insufficient evidence had been presented.
At the outset of the hearing herein, the Company filed an amended answer which,
in substance , contained as affirmative matter of defense the same allegations sup-
ported by substantially the same material as was contained in the petition for recon-
sideration heretofore discussed. Counsel for the General Counsel moved to strike
the allegations pertaining to the unit question on the ground that the Board had
already made a final determination thereof in the representation proceeding and on
the additional ground of the Board's denial of the Company's petition for reconsider-
ation . The General Counsel 's motion to strike was granted.
When the Company sought to offer testimony regarding its affirmative defense of
inappropriate unit, I refused, upon objection by counsel for the General Counsel,
to permit the Company to do so. However, I did adjourn the hearing to permit
the Company to submit a detailed written offer of proof which, though rejected, has
been made a part of the record herein as a rejected exhibit.
B. Concluding findings
As stated above, the Company's entire defense is predicated upon its contention
that the Board 's unit determination in the representation proceeding was incorrect
both at the time of the unit determination and in the light of developments at the
plant in question subsequent thereto. The Company further contends that it is error
to refuse to permit it to relitigate this matter in this proceeding since newly dis-
covered evidence of postelection developments warrants such relitigation; that the
Board has held that changes in circumstances occurring subsequent to a unit determi-
nation constitute a basis for reconsideration in a later unfair labor practice
proceeding.4
However, in the instant proceeding, the Company conceded that all of the re-
organization was completed before the petition for reconsideration of the unit deter-
mination was presented to the Board on September 30, 1960, and that the particulars
thereof were submitted in that petition. Moreover, a reading of the petition and
the material in support thereof, and the Company's contentions in the representation
case, together with the Company's amended answer in this proceeding and its rejected
offer of proof convince me that the basic argument and the basic facts of all of
them are essentially the same except for the amount of detail and definiteness.
In view of this and the Board's unit determination in the representation proceeding
and its refusal to reconsider upon the Company's petition therefore, I believe, that
in the light of precedent, I have no alternative but to reject all of the testimony and
offers of proof in this proceeding pertaining to the unit issue.5 I must therefore
conclude that such matter cannot be considered at this time as a defense excusing
the Company's refusal to bargain.
Accordingly, I find that since July 13, 1960, the Company has failed to bargain
in good faith with the Union as the exclusive representative of its employees in an
appropriate unit, which I find to be all maintenance electricians employed at the
Company's Springfield, Missouri, plant, excluding the electronic technician, the
trades helpers assigned to the electrical maintenance department, and all other
employees and supervisors as defined in the Act, in violation of Section 8(a) (5) and
(1) of the Act.
N. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
.The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close , intimate , and substantial relation to trade , traffic, and commerce among the
a Citing Justron S. McCarty, Jr., et al., d/b/a McCarty Manufacturing Co., 61 NLRB
443; Standard Oil Company of California , 63 NLRB 471 ; The Bell & Howell Company,
64 NLRB 220; Endicott Johnson Corp , 67 NLRB 1342, and others
5 See Wytheville Knitting Mills, Inc, 117 NLRB 1719, 1720; Morganton Full Fashioned
Hosiery Company, et al., 115 NLRB 1267, enfd. 241 F. 2d 913 (C.A. 4) ; Esquire, Inc
( Coronet Instructional Films Division ), 109 NLRB 530 , enfd. 222 F. 2d 253 (CA 7).
1454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
several States , and tend to lead to labor disputes burdening and obstructing commerce
and the free flow thereof.
V. THE REMEDY
Having found that the Company has refused to bargain collectively with the Union
as the exclusive representative of its employees in an appropriate unit , I will recom-
mend that the Company, upon request, bargain collectively with the Union.
Upon the basis of the above findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of the Act.
2. All maintenance electricians employed at the Respondent's Springfield, Mis-
souri, plant, excluding the electronic technician, the trades helpers assigned to the
electrical maintenance department , and all other employees and supervisors as de-
fined in the Act, constitute a unit appropriate for the purposes of collective bargain-
ing within the meaning of Section 9(b) of the Act.
3. At all times since June 17, 1960, the Union has been the exclusive representative
of all employees in the appropriate unit for the purposes of collective bargaining
within the meaning of Section 9(a) of the Act.
4. By refusing to bargain collectively with the Union as the exclusive representa-
tive of the employees in the appropriate unit on July 13, 1960, and thereafter, the
Respondent engaged in and is engaging in unfair labor practices within the meaning
of Section 8(a) (5) of the Act.
5. By said acts the Respondent has interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the Act, thereby
engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law and upon
the entire record in the case, I recommend that Royal McBee Corporation, Spring-
field, Missouri , its officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Local Union No. 453, International
Brotherhood of Electrical Workers, AFL-CIO, as the exclusive representative of its
employees in the appropriate unit with respect to rates of pay, wages, hours of em-
ployment, or other conditions of employment.
(b) In any like or related manner interfering with, restraining , or coercing its
employees in the exercise of their right to self-organization, to form labor organiza-
tions, to join or assist Local Union No. 453, International Brotherhood of Electrical
Workers, AFL-CIO, or any other labor organization to bargain collectively through
representatives of their own choosing and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or protection as guaranteed in
Section 7 of the Act, or to refrain from any and all of such activities, except to the
extent that such rights may be affected by an agreement requiring membership in a
labor organization as a condition of employment , as authorized in Section 8(a)(3)
of the Act, as modified by the Labor-Management Reporting and Disclosure Act of
1959.
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Upon request bargain collectively with Local Union No. 453, International
Brotherhood of Electrical Workers, AFL-CIO, as the exclusive bargaining agent in
the appropriate unit with respect to rates of pay, wages, hours of employment or, other
conditions of employment, and, if an understanding is reached, embody such under-
standing in a signed agreement.
(b) Post at its plant in Springfield , Missouri , copies of the notice attached hereto
marked "Appendix." Copies of said notice, to be furnished by the Regional Director
for the Seventeenth Region, shall, after being duly signed by an authorized representa-
tive of the Company, be posted by the Company immediately upon receipt thereof
and maintained by it for 60 consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are customarily posted . Reasonable
steps shall be taken by the Respondent to be sure that said notices are not altered, de-
faced, or covered by any other material.
(c) Notify the Regional Director for the Seventeenth Region , in writing , within
20 days from the date of the receipt of this Intermediate Report and Recommended
Order, what steps it has taken to comply herewith.
R. D. COLE MANUFACTURING COMPANY 1455
I further recommend that unless on or before 20 days from the date of receipt of
this Intermediate Report and Recommended Order the Respondent notify the said
Regional Director , in writing , that it will comply with the foregoing recommenda-
tions, the National Labor Relations Board issue an order requiring the Respondent
to take the aforesaid action.
APPENDIX
NOTICE To ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify our employees that:
WE WILL NOT refuse to bargain collectively with Local Union No. 453, Inter-
national Brotherhood of Electrical Workers, AFL-CIO, as the exclusive repre-
sentative of the employees in the bargaining unit described below.
WE WILL NOT engage in any like or related acts or conduct interfering with,
restraining , or coercing our employees in the exercise of their right to self-
organization , to form labor organizations , to join or assist Local Union No. 453,
International Brotherhood of Electrical Workers, AFL-CIO, or any other labor
organization , to bargain collectively through representatives of their own choos-
ing and to engage in concerted activities for the puropse of collective bargaining
or other mutual aid or protection as guaranteed in Section 7 of the Act, or to
refrain from any and all such activities except to the extent that such rights may
be affected by an agreement requiring membership in a labor organization as a
condition of employment , as authorized in Section 8(a) (3) of the Act, as modi-
fied by the Labor -Management Reporting and Disclosure Act of 1959.
WE WILL , upon request , bargain collectively with Local Union No. 453, Inter-
national Brotherhood of Electrical Workers, AFL-CIO, as the exclusive bar-
gaining agent of all the employees in the appropriate unit with respect to rates
of pay , hours of employment , or other conditions of employment , and if an
understanding is reached , embody such understanding in a signed agreement.
The bargaining unit is:
All maintenance electricians , excluding the electronic technician , the trades
helpers assigned to the electrical maintenance department , and all other
employees and supervisors as defined in the Act.
ROYAL MCBEE CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced , or covered by any other material.
R. D. Cole Manufacturing Company and International Brother-
hood of Boilermakers, Iron Ship Builders, Blacksmiths,
Forgers & Helpers, AFL-CIO, Petitioner . Case No. 10-RC-
4907. October 26, 1961
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
Pursuant to a Board Decision and Direction of Election I issued on
May 17, 1961, an election by secret ballot was conducted in the above-
entitled proceeding on May 26, 1961 , under the direction and super-
vision of the Regional Director for the Tenth Region , among the
employees in the appropriate unit. At the conclusion of the balloting,
' Not published in NLRB volumes.
133 NLRB No. 130.